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Noah Feldman

Abortion Case Leak Shows That the Supreme Court Is Broken

The release of a draft majority opinion overturning Roe v. Wade turns a constitutional tragedy into an institutional calamity.

It’ll never be the same.

It’ll never be the same.

Photographer: Stefani Reynolds/AFP via Getty Images

The leaked draft of a majority Supreme Court decision by Justice Samuel Alito overturning Roe v. Wade means several things.

First, it indicates that in the justices’ private conference, at least five members of the court voted to reverse the 1973 abortion precedent. They aren’t bound by that vote, which they can change up to the day the final opinion is released. Almost all first drafts undergo significant revision based on discussion and debate among the justices. So the second point to make is that Roe isn’t yet overturned, though it very likely will be.